Court filing by former Rep. Schmitz

IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF ALABAMANORTHEASTERN DIVISIONUNITED STATES OF AMERICA, ))PLAINTIFF, ))v. ) CASE NO.: CR-08-P-14-RDP-PWG)SUZANNE L. SCHMITZ, ))DEFENDANT. )SENTENCING MEMORANDUM ON BEHALF OF SUZANNE L. SCHMITZSuzanne L. Schmitz files this Sentencing Memorandum setting forth the factorsthat the Court should consider in determining what type sentence is sufficient to complywith the statutory directives set forth in 18 U.S.C. § 3553(a). In addition, thememorandum briefly addresses the guideline found at U.S.S.G. § 2B1.1(a)(1) and thecalculation of loss as a specific offense characteristic that is addressed in U.S.S.G §2B1.1(b)(1).At the sentencing hearing, Mrs. Schmitz will present evidence in support of asentence to a term of probation to include extensive community service. Should thisCourt find detention necessary, Mrs. Schmitz would request home detention as acondition of probation. Mrs. Schmitz expects to present this Court evidence that will layout an extensive plan for community service.The "over-arching provision" of 18 U.S.C. § 3553(a) is, of course, to impose asentence sufficient, but not greater than necessary" to meet the goals of sentencingestablished by Congress. Kimbrough v. United States, 128 S.Ct. 558, 570 (2007). Thestatute, in addition to requiring the sentencing court to consider the "nature andFILED2009 Jul-16 PM 04:16U.S. DISTRICT COURTN.D. OF ALABAMA2circumstances of the offense," requires the court to consider the "history andcharacteristics of the defendant." § 3553(a)(2) states that such purposes are:(A) to reflect the seriousness of the offense, to promote respect forthe law, and to provide just punishment for the offense;(B) to afford adequate deterrence to criminal conduct;(C) to protect the public from further crimes of the defendant; and(D) to provide the defendant with needed educational or vocationaltraining, medical care, or other correctional treatment in the mosteffective manner.Under Booker sentencing courts must treat the guidelines as just one of a numberof sentencing factors set forth in 18 U.S.C. § 3553(a).This Court may deviate from the Sentencing Guidelines in fashioning anappropriate sentence if to do so would result in a reasonable sentence considering variousfactors that Congress has enumerated in 18 U.S.C. § 3553(a). In determining theminimally sufficient sentence, § 3553(a) further directs sentencing courts to consider thefollowing factors found in 18 U.S.C. § 3553(a)(1), (3)-(7) :(1) the nature and circumstances of the offense and the history andcharacteristics of the defendant;(3) the kinds of sentences available;(4) the kinds of sentence and the sentencing range established for -(A) the applicable category of offense committed by the applicablecategory of defendant as set forth in the guidelines-(i) issued by the Sentencing Commission pursuant tosection 994(a)(1) of title 28, United States Code, subject toany amendments made to such guidelines by act ofCongress (regardless of whether such amendments have yetto be incorporated by the Sentencing Commission intoamendments issued under 994(p) of title 28); and(ii) that, except as provided in section 1742(g), are in effecton the date the defendant is sentenced; or(B) in the case of a violation of probation or supervised release, theapplicable guidelines or policy statements issued by the SentencingCommission pursuant to 994(a)(3) of title 28, United States Code,taking into account any amendments made to such guidelines orpolicy statements by act of Congress (regardless of whether such3amendments have yet to be incorporated by the SentencingCommission into amendments issued under 944(p) of title 28);(5) any pertinent policy statement-(A) issued by the Sentencing Commission pursuant to section994(a)(2) of title 28, United States Code, subject to anyamendments made to such policy statement by act of Congress(regardless of whether such amendments have yet to beincorporated by the Sentencing Commission into amendmentsissued under section 994(p) of title 28); and(B) that, except as provided in section 3742(g), is in effect on thedate the defendant is sentenced.(6) the need to avoid unwarranted sentence disparities among defendantswith similar records who have been found guilty of similar conduct; and(7) the need to provide restitution to any victiMrs. of the offense.HISTORY AND CHARACTERISTICS OF MRS. SCHMITZMrs. Schmitz was reared and has spent most of her life in Madison County,Alabama. She and her husband John Schmitz have reared three children. Each childachieved the rank of Eagle Scout, graduated college are successfully employed and nowrearing Mrs. Schmitz's grandchildren. Davis Schmitz (age 39) is married and has threechildren. Jonathan Schmitz (age 35) is married and has two children. Matthew Schmitz(age 30) is married and has one child.Mrs. Schmitz would be best characterized as a mother and an educator. Afterworking in the home to rear her children, she returned to teaching in 1986 at SparkmanHigh School in Harvest, Alabama. She taught there until 2003. While teaching atSparkman, she earned many honors including Sparkman High School Teacher of theYear and Madison County Teacher of the Year in 1991, Sparkman High School Teacherof the Year, Madison County Teacher of the Year, District 8 State Teacher of the Year in1993, Linda Chozen National Award for excellence in teaching civic education in 1996.Attached hereto as Exhibit A, is a list of her awards. Mrs. Schmitz was alsoinstrumental in developing a civics program called "We The People." This became a4nationally recognized program that has inspired many students to achieve excellence inacademics and to become interested and engaged in community and government affairs.MRS. SCHMITZ PHYSICAL HEALTH AND MENTAL CONDITIONMrs. Schmitz's health is fragile. That was evidenced in the first trial when thisCourt recessed proceedings because Mrs. Schmitz was briefly hospitalized and ordered tobed rest for mental and physical exhaustion caused by the stress of the charges and trial.Attached hereto as Exhibit B is a letter from her family physician, William B. Hahn, Jr.,M.D. Mrs. Schmitz's medical problems include Diabetes Mellitus, Hypertension,Hyperlipidemia, Degenerative Joint Disease, and Renal Insufficiency. She also suffereda stroke on March 7, 2007. She has further suffered severe depression and anxiety inlarge part because of the charges and now the conviction and the stress it has caused herfamily. This has required her to take medications. Mrs. Schmitz would request that thisCourt take into consideration the impact incarceration would have on her already fragilephysical and mental condition.KINDS OF SENTENCES AVAILABLEMrs. Schmitz proposes a sentence of probation with a condition of extensivecommunity service that takes into consideration her life experiences and expertise ineducation. Mrs. Schmitz plans to present testimony from Jackie L. Wolfe, Jr., Director ofMadison County, Alabama Office of Alternative Sentencing and Release. Attachedhereto as Exhibit C is a letter from Mr. Wolfe to the undersigned laying out his offices'willingness and ability to prepare and supervise a community service sentence that takesinto account her professional background. Such a sentence would be in keeping with thefactors stated in § 3553(a).5CALCULATION OF LOSS AND RESTITUTIONThe base offense level is 7 as found at U.S.S.G. § 2B1.1(a)(1). The PresentenceInvestigation Report increases the offense level by 10 levels pursuant to U.S.S.G. §2B1.1(b)(1)(F) by calculating the loss as being more than $120,000 but less than$200,000. Application Note 3 (E) states in pertinent part that "loss shall be reduced by... (i) the services rendered, by the defendant or other persons acting jointly with thedefendant, to the victim before the offense was detected." Attached hereto as Exhibit Dis a summary of value Mrs. Schmitz added to the CITY Program. Mrs. Schmitz expectsto present testimony and evidence regarding restitution and loss from R. Thomas Beason,who is a Certified Public Accountant in Huntsville, Alabama. Mr. Beason will explain tothis Court how he reached the numbers stated in the summary. He provides in hissummary an upper and lower range of value, giving a total calculation of $44,680 as thelower range and $55,780 as the upper range of value. Mr. Beason has also prepared aSummary Report on Income Tax Effect, which has been attached hereto as Exhibit E.This summary states that the gross amount Mrs. Schmitz received for federal taxpurposes was $177,253. Federal and Alabama income taxes paid on this amount was$46,746, so she only kept $130,507, not taking into consideration any Social Security orMedicare tax withheld.Mrs. Schmitz submits that she is able to show value added in the range of $44,680to $55,780, which she will ask the Court to determine after having heard testimonyduring the sentencing hearing. This Court should subtract that value added from the$130,507 that she kept after taxes in valuing loss, if any. Mrs. Schmitz submits that thisCourt should not increase levels pursuant to U.S.S.G. § 2B1.1(b)(1)(F) because of the6value Mrs. Schmitz added to the CITY Program. She added measurable value asevidenced in the Summary of Value Added that has been attached as Exhibit D. Inaddition, she has added immeasurable and continued value to the program. For instance,she worked to get funding for the program as is evidenced by the visit that then SenatorJeff Enfinger made to the program. This type of value is hard to put a number on but it isvery real in the lives of the employees where they keep a job and in the lives of thestudents who continue to have a school.CONCLUSIONThis Court is well acquainted with the facts of this case having presided over twotrials and is well aware of the reputation of Mrs. Schmitz for honesty, duty to diligenceand hard work. The jury has convicted Mrs. Schmitz for criminal conduct after a hardfought trial. Now is not the time to argue her conduct was not criminal, but toacknowledge the jury's decision and ask this Court to find her conduct an aberration fromher spotless record and her reputation and history of being a pillar in her community. Shedid not earn this reputation by being a lazy person, but by a lifetime of educatingchildren, sometimes as a paid educator, other times as a volunteer. She worked hard forher community as a representative in the Alabama Legislature. These are all things thatthis Court is well aware of and this memorandum has been as brief as possible because ofthis Court's intimate knowledge of the case. Mrs. Schmitz requests that this Courtconsider all factors in structuring a sentence of probation with a condition of extensivecommunity service.Respectfully submitted this the 16th day of July, 2009.7___/s/_________________________Herman Watson, Jr.WATSON, McKINNEY & ARTRIP203 Green StreetP.O. Box 18368Huntsville, Alabama 35804-1836Telephone (256) 536-7423Facsimile: (256) 536-2689watson@watsonmckinney.com/s/ _______________________Jake WatsonWATSON GRAFFEO P.C.228 Holmes Avenue, N.E., Suite 300Huntsville, Alabama 35801Telephone: (256) 536-8373Facsimile: (256) 536-8349watson@watsongraffeo.com/s/ _______________________Aaron RyanWATSON GRAFFEO P.C.228 Holmes Avenue, N.E., Suite 300Huntsville, Alabama 35801Telephone: (256) 536-8373Facsimile: (256) 536-8349ryan@watsongraffeo.com8CERTIFICATE OF SERVICE I hereby certify that on July 16, 2009, I electronically filed the foregoing with theClerk of the Court using the CM/ECF system which will send notification of such filingto the following:William C. AthanasAssistant United States Attorney1801 Fourth Avenue NorthBirmingham, Alabama 35203David EstesAssistant United States Attorney400 Meridian Street, North, Suite 304Huntsville, Alabama 35801/s/Of Counsel